Chi v Technical and Further Education Commission - [2012] NSWCA 421

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chi v Technical and Further Education Commission [2012] NSWCA 421
Hearing dates: 3 July 2012
Decision date: 17 December 2012
Before: McColl JA (at [1]); Barrett JA (at [2]); Gzell J (at [42])
Decision:
1. Appeal dismissed.
2. That the appellant pay the respondent's costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: HUMAN RIGHTS - discrimination - racial discrimination - victimisation - student at TAFE alleges that he was refused enrolment in certain course modules because of a complaint made by him about alleged conduct of certain TAFE staff - whether alleged conduct complained of "would amount to" contravention of prohibition on racial discrimination - only potentially relevant alleged conduct consisted of statement by a teacher to appellant "You could not read English" - need to compare that alleged conduct towards appellant with conduct that would have been engaged in towards a member of the relevant comparator group - such group consists of students perceived by teacher to be unable to read English where the inability does not result from race, ethnicity or national origin - PROCEDURE - appeal - appeal confined to appeal on question of law - whether question whether conduct is contravention of statutory prohibition is a question of law.
Legislation Cited: Administrative Decisions Tribunal Act 1997, s 119
Anti-Discrimination Act 1977, ss 4(1), 17(2), 50
Cases Cited: B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481
Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271
Chi v Technical and Further Education Commission [2010] NSWADTAP 67
Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509
Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92
Category: Principal judgment
Parties: Johny Chi - Appellant
Technical and Further Education Commission - Respondent
Representation: R Francois - Appellant
P Ginters - Respondent
Gilbert & Tobin - Appellant
I V Knight, Crown Solicitor - Respondent

File Number(s): 2011/34507
Decision under appeal

Citation:

Chi v Technical and Further Education Commission [2010] NSWADTAP 67

Date of Decision:

2010-10-11 00:00:00

Before:

Patten D - Deputy President; Huntsman C - Judicial Member; Hiffernan N - Non-Judicial Member

File Number(s):

061089

JUDGMENT

McCOLL JA: I agree with Barrett JA's reasons and the orders his Honour proposes.

BARRETT JA: The appellant was, at material times, a student enrolled in an information technology course conducted by the respondent, Technical and Further…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWCA 421
Decision Date: 17 December 2012

CaseChat Overview and Summary

In *Chi v Technical and Further Education Commission*, the appellant, a student at TAFE, alleged that he was refused enrolment in certain course modules due to a complaint he had made about the conduct of TAFE staff. The appeal to the Court of Appeal of New South Wales was confined to a question of law, specifically whether the alleged conduct complained of "would amount to" a contravention of the prohibition on racial discrimination.

The central legal issue before the court was whether the alleged conduct of a teacher stating to the appellant, "You could not read English," constituted racial discrimination. To determine this, the court had to consider whether this alleged conduct, when compared to conduct that would have been engaged in towards a member of a relevant comparator group, amounted to discrimination. The comparator group was defined as students perceived by the teacher to be unable to read English, where such inability did not stem from their race, ethnicity, or national origin. The court also had to determine if the question of whether conduct contravenes a statutory prohibition is a question of law.

The court reasoned that for the alleged conduct to amount to racial discrimination, it must be shown that a person of a different race, ethnicity, or national origin, who was similarly perceived by the teacher to be unable to read English, would not have been subjected to the same statement. The court found that the appellant had not established that the statement was made because of his race or national origin, nor had he demonstrated that a comparator student, not of his race or national origin, would have been treated differently. The court concluded that the question of whether conduct contravenes a statutory prohibition is indeed a question of law.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed.

2. That the appellant pay the respondent's costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Chi v Technical and Further Education Commission [2012] NSWCA 421
Hearing dates:	3 July 2012
Decision date:	17 December 2012
Before:	McColl JA (at [1]); Barrett JA (at [2]); Gzell J (at [42])
Decision:	1. Appeal dismissed. 2. That the appellant pay the respondent's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	HUMAN RIGHTS - discrimination - racial discrimination - victimisation - student at TAFE alleges that he was refused enrolment in certain course modules because of a complaint made by him about alleged conduct of certain TAFE staff - whether alleged conduct complained of "would amount to" contravention of prohibition on racial discrimination - only potentially relevant alleged conduct consisted of statement by a teacher to appellant "You could not read English" - need to compare that alleged conduct towards appellant with conduct that would have been engaged in towards a member of the relevant comparator group - such group consists of students perceived by teacher to be unable to read English where the inability does not result from race, ethnicity or national origin - PROCEDURE - appeal - appeal confined to appeal on question of law - whether question whether conduct is contravention of statutory prohibition is a question of law.
Legislation Cited:	Administrative Decisions Tribunal Act 1997, s 119 Anti-Discrimination Act 1977, ss 4(1), 17(2), 50
Cases Cited:	B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481 Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 Chi v Technical and Further Education Commission [2010] NSWADTAP 67 Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 509 Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92
Category:	Principal judgment
Parties:	Johny Chi - Appellant Technical and Further Education Commission - Respondent
Representation:	R Francois - Appellant P Ginters - Respondent Gilbert & Tobin - Appellant I V Knight, Crown Solicitor - Respondent
File Number(s):	2011/34507
Decision under appeal	Citation: Chi v Technical and Further Education Commission [2010] NSWADTAP 67 Date of Decision: 2010-10-11 00:00:00 Before: Patten D - Deputy President; Huntsman C - Judicial Member; Hiffernan N - Non-Judicial Member File Number(s): 061089